“God in the Dock” (Part 1 of 3) by David Opderbeck

The courtroom is a powerful symbol in our popular culture.  The phrase “the verdict is in…” appears in settings ranging from advertising comparisons of different kinds of shampoo to opinion polls on political issues to arguments for and against God.  As a practicing lawyer, law professor, and theology student, I find this use of courtroom metaphors fascinating and sometimes troubling.  In particular, I worry that the popularity of courtroom apologetics, particularly in the conversation over faith and science, belies some deep theological and philosophical misconceptions, and that these theological and philosophical misconceptions can hinder both our joy in seeking God’s truth and our faithfulness in witnessing to that truth in the world.

Let me begin with a story.

Some years ago I appeared in the U.S. Federal District Court for the District of New Jersey for a routine settlement conference in a contract dispute.  Both of the parties to the suit were small businesses.  My client had entered into a service contract with the plaintiff.  The plaintiff, according to my client, did not deliver all the services under the contract, and my client withheld payment.  The plaintiff alleged that it had, in fact, performed as required by the contract and that payment was due.  The amount at stake was about $250,000 – small potatoes for a Federal lawsuit, but significant to these small businesses.  State and Federal courts around the U.S. handle many thousands of similar cases every year.

In most Federal civil trial courts, settlement conferences are conducted by a Magistrate Judge.  Typically the Judge meets with counsel and the parties together in chambers to review the case.  Often the Judge will then meet with each party separately to conduct a kind of shuttle diplomacy.  Sometimes, while the Judge meets with one party in chambers, the other party waits in the empty courtroom, with subdued lighting, heavy drapery, and the great seal of the court positioned over the Judge’s bench.  There is an aspect of theatrical performance to this process.  The Judge tries to impress on the litigants the risks of litigation and the potential weaknesses in their respective cases in order to resolve the case and clear his or her docket.  Experienced counsel is wise to this game but tacitly participates in the ritual.  Trials are risky and clients sometimes harbor grossly unrealistic expectations about the results a trial might produce.

In the contract dispute I mentioned, the owner of the company I represented was shrewd businessman.  He and I both thought we had a good chance of winning at trial.  However, given the risks and costs, we were willing to offer about half of the claimed payment due in settlement.  We communicated this to the Judge during our private meeting, and the Judge agreed that this was a wise course of action.  The Judge had us leave chambers and called in the other party.  For an experienced litigator, this represents the moment when a case starts to move and settlement seems likely.

The owner of the plaintiff corporation, however, was not so objective.  For him, this litigation was about JUSTICE (he tended to speak about this in all caps).  He rejected our offer and insisted that he would take the case to trial and achieve justice, even if it took until his dying breath.

The Judge dismissed the plaintiff and called me and my client back into chambers.  He communicated to us the plaintiff’s position, and added the following astute judicial commentary:  “What a F—ing idiot!”   Some months later, after some costly and time-consuming discovery and motion practice, the case finally settled, at a value close to what we originally had offered.  Perhaps the plaintiff’s accountants realized the costs of justice.

I recount this story at the outset of this series because it illustrates the reality of the legal process.  In the popular imagination, the court room is the place in which lies are exposed and truth revealed.  Our iconic cultural moment for the judicial process comes from the movie “A Few Good Men,” where Tom Cruise cross-examines Jack Nicholson until Nicholson finally cracks and shouts “You want the truth?  You can’t handle the truth!” before admitting Cruise was right about everything all along.  The reality is that the judicial process is not set up to find the exhaustive and final truth of a matter.  It is set up to resolve disputes as pragmatically and efficiently as possible so that the business of society can keep moving on.

The rules of evidence and procedure that govern trials – in the very, very small percentage of cases that ever go to trial – reflect this pragmatic orientation.  Trials do not go on forever, the parties cannot call every conceivable witness or offer every possible scrap of evidence, and the standards of judgment are flexible.  In civil cases, the standard of proof typically is “a preponderance of evidence” – meaning that the scales must tip only ever so slightly to one side or the other.  Mistakes of law are often reviewable by appellate courts de novo – from the beginning, with fresh eyes – but alleged mistakes of fact are usually reviewable only for an abuse of discretion – a standard that is rarely met.  And very seldom does a witness utterly crumble under cross examination and admit the other side is completely right.  In fact, in most cases that don’t settle early on, the “right” outcome generally is ambiguous.  Both parties usually can make out a viable case under the existing law and available facts.

I think all of this makes the courtroom an inapt metaphor for Christian apologetics.  We imagine some sort of Tom Cruise meets Jack Nicholson moment in which the world crumbles on the stand and acknowledges that we Christians are right about everything after all.  Real court rooms don’t work that way, and neither does real, authentic witness to the Gospel.

It’s not just a matter of making the courtroom appear overly dramatic.  In litigation, the court is a neutral authority capable of making a binding decision about the merits of the dispute.  The settlement conference procedure I mentioned above tends to work in most cases because the parties come to realize that the process, at least as applied to their specific case, isn’t about “justice” in any absolute sense at all.  The process is about resolving disputes and moving on.  It’s entirely possible that the court might reach an unfavorable conclusion simply because of the inherent constraints intentionally built into the process.  In the broadest sense, the parties agree to a social contract in which the court, whether it turns out to be right or wrong, has authority to decide the case.  And the realization that the court could get it wrong, or simply that the process might drag on for long time and cost substantial legal fees, almost always eventually moves the parties to compromise.

We who are part of the Kingdom inaugurated by Jesus, however, could never enter into any such social contract concerning the truth of the Gospel.  As far as we’re concerned, there is no neutral third party, no judicial body, capable of adjudicating the claim that Jesus is Lord and that his peaceable Kingdom has come through his death and resurrection.  To submit the Lordship of Christ before any such judicial bar would constitute blasphemy.  We do not seek or even demand a verdict from anyone about this.  Rather, we proclaim that it is so, and announce that it judges all other presumptive authorities.

Yet, we do publicly proclaim that it is so.  A public proclamation is always a form of apologia.  It is a giving of reasons why we as the Church seek to live and worship in certain ways.  And it is an effort to describe as fully and richly as possible all the implications of what we proclaim.  Not the least of those implications is that the God who created the world created it good, that He imbued creation with His own beauty and reason, and that of all His creatures His love for humans is particularly shown in our share of that reason.  So our public proclamation, our apologia for this good news, includes our effort to express the coherence, explanatory power, aesthetics, and moral force – the fullness of reason – inherent in it.

Notice the priority in this order.  It is not that reason establishes the validity of the proclamation.  It is that the proclamation establishes the validity of reason.  The Gospel does not make sense in the light of reason.  Reason only finally makes sense in the light of the Gospel.

This sense of priority suggests an order of truth:  God, theology, proclamation, reason, and apologia.  From a Christian perspective, the first order of truth must always be God, and the second order must be theology.  Since God is in essence ineffable, our primary mode of speech about God’s truth must be theology.  Proclamation, reason, and apologia follow from theology.  Theology was once the “queen of the sciences.”  For Christians, theology must yet hold this title.  In my next post, I’ll begin to unpack this claim by exploring the relationship between faith and philosophy.

Wednesday, October 31st, 2012 Blogs

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